Court No. - 36
Case :- WRIT - A No. - 9955 of 2021 Petitioner :- Sourangi Devi And Another Respondent :- Union Of India And 2 Others Counsel for Petitioner :- Yatharth Srivastava Counsel for Respondent :- A.S.G.I.
Hon'ble Mahesh Chandra Tripathi,J.
Petitioners are before this Court for compassionate appointment due to sudden demise of his father Late Hari Das on 17.6.2009 who was working as Phone Mechanic in BSNL, Varanasi.
Prayer made in the writ petition is opposed by learned counsel for the respondents on the ground that a claim for grant of compassionate appointment is not liable to be considered, even otherwise, as nearly 10 years had lapsed on the date of filing of the application, and that law is otherwise settled that compassionate appointment cannot be claimed as a matter of right.
It is not in dispute that father of the petitioner No. 2 had died in the year 2009. Application for grant of compassionate appointment has been made after nearly 10 years. The mere ground that applicant was not a major would not be sufficient to condone the delay in view of the fact that the object for grant of such compassionate appointment is to tide over the sudden difficulty caused due to death of sole bread earner and such crisis cannot be presumed to exist even after 12 years of death.
In view of the fact that by now a period of 12 years have expired and the object of providing compassionate appointment cannot be said to subsist, in view of the law laid down by the Apex Court in Umesh Kumar Nagpal vs. State of Haryana and others: (1994) 4 SCC 138, wherein following has been observed in para 6:-
"6. For these very reasons, the compassionate employment cannot be granted after a lapse of a reasonable period which must be specified in the rules. The consideration for such employment is not a vested right which can be exercised at any time in future. The object being to enable the family to get over the financial crisis which it faces at the time of the death of the sole 1 (1989) 4 SCC 468: 1989 SCC (L&S) 662: (1989)11ATC878:(1989) 4 SLR 327 breadwinner, the compassionate employment cannot be claimed and offered whatever the lapse of time and after the crisis is over. "
Even otherwise this Court bears in mind the principles enunciated by the Full Bench of the Court in Shiv Kumar Dubey and Others Vs. State of U.P. 2014(2) ADJ 312 wherein the following principles with regard to appointment on compassionate basis were culled out:-
"(29) (i) A provision for compassionate appointment is an exception to the principle that there must be an equality of opportunity in matters of public employment. The exception to be constitutionally valid has to be carefully structured and implemented in order to confine compassionate appointment to only those situations which subserve the basic object and purpose which is sought to be achieved;
(ii) There is no general or vested right to compassionate appointment. Compassionate appointment can be claimed only where a scheme or rules provide for such appointment. Where such a provision is made in an administrative scheme or statutory rules, compassionate appointment must fall strictly within the scheme or, as the case may be, the rules;
(iii) The object and purpose of providing compassionate appointment is to enable the dependent members of the family of a deceased employee to tide over the immediate financial crisis caused by the death of the bread- earner;
(iv) In determining as to whether the family is in financial crisis, all relevant aspects must be borne in mind including the income of the family; its liabilities, the terminal benefits received by the family; the age, dependency and marital status of its members, together with the income from any other sources of employment;
(v) Where a long lapse of time has occurred since the date of death of the deceased employee, the sense of immediacy for seeking compassionate appointment would cease to exist and this would be a relevant circumstance which must weigh with the authorities in determining as to whether a case for the grant of compassionate appointment has been made out;
(vi) Rule 5 mandates that ordinarily, an application for compassionate appointment must be made within five years of the date of death of the deceased employee. The power conferred by the first proviso is a discretion to relax the period in a case of undue hardship and for dealing with the case in a just and equitable manner;
(vii) The burden lies on the applicant, where there is a delay in making an application within the period of five years to establish a case on the basis of reasons and a justification supported by documentary and other evidence. It is for the State Government after considering all the facts to take an appropriate decision. The power to relax is in the nature of an exception and is conditioned by the existence of objective considerations to the satisfaction of the government;
(viii) Provisions for the grant of compassionate appointment do not constitute a reservation of a post in favour of a member of the family of the deceased employee. Hence, there is no general right which can be asserted to the effect that a member of the family who was a minor at the time of death would be entitled to claim compassionate appointment upon attaining majority. Where the rules provide for a period of time within which an application has to be made, the operation of the rule is not suspended during the minority of a member of the family.
(30) As regards the judgment of the Division Bench in Vivek Yadav (supra), the first part of the judgment of the Division Bench in Vivek Yadav's case holds in paragraph 4 that since Rule 5 contemplates an application by a competent person, in a case where the applicant is a minor, it will not be possible for a minor to make an application during the period of his minority. Therefore, considering the object of the Rules, it was held that the proviso to Rule 5 must normally be exercised in such cases. This observation, with respect, requiring that the proviso to Rule 5 must normally be exercised for the purpose of dealing with a case in a just and equitable manner would not be reflective of the correct position in law. The subsequent decision in Subhash Yadav (supra) only holds that the Government cannot dismiss an application which has been moved after five years blindfolded but has to apply its mind rationally to all the facts and circumstances of the case. In this regard, we clarify that the second proviso to Rule 5 requires an applicant, who invokes the power of dispensation or relaxation under the first proviso of the time limit of five years, to make out a case of undue hardship by elucidating, in writing, with necessary documentary evidence and proof, the reasons and justification for the delay. The Government may, in an appropriate case, when it is satisfied on the basis of the material that a case of undue hardship is made out, exercise the power which is conferred upon it under the first proviso to Rule 5 of the Rules but this power has to be exercised where a demonstrated case of undue hardship is made out to the satisfaction of the State Government. We answer the reference accordingly in the aforesaid terms."
Bearing the aforesaid factors in mind, this Court finds no ground warranting interference with the orders impugned.
Writ petition is dismissed.
Order Date :- 12.8.2021 Jaswant